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OREGON CRIMINAL JUSTICE COMMISSION

DIVISION 8

DEPARTURES

213-008-0001

Departure Sentences

Except as provided in OAR 213-005-0006, the sentencing judge shall impose the presumptive sentence provided by the guidelines unless the judge finds substantial and compelling reasons to impose a departure. If the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.

(1) Subject to the provisions of sections
(2) and (3) of this rule, the following nonexclusive list of mitigating and aggravating
factors may be considered in determining whether substantial and compelling reasons
for a departure exist:

(a) Mitigating factors:

(A) The victim was an aggressor
or participant in the criminal conduct associated with the crime of conviction.

(B) The defendant acted under
duress or compulsion (not sufficient as a complete defense).

(D) The offense was principally
accomplished by another and the defendant exhibited extreme caution or concern for
the victim.

(E) The offender played a
minor or passive role in the crime.

(F) The offender cooperated
with the state with respect to the current crime of conviction or any other criminal
conduct by the offender or other person. The offender's refusal to cooperate with
the state shall not be considered an aggravating factor.

(G) The degree of harm or
loss attributed to the current crime of conviction was significantly less than typical
for such an offense.

(H) The offender's criminal
history indicates that the offender lived conviction-free within the community for
a significant period of time preceding his or her current crime of conviction.

(I) The offender is amenable
to treatment and an appropriate treatment program is available to which the offender
can be admitted within a reasonable period of time; the treatment program is likely
to be more effective than the presumptive prison term in reducing the risk of offender
recidivism; and the probation sentence will serve community safety interests by
promoting offender reformation.

(J) The offender’s
status as a servicemember as defined in ORS 135.881.

(b) Aggravating factors:

(A) Deliberate cruelty to
victim.

(B) The offender knew or
had reason to know of the victim's particular vulnerability, such as the extreme
youth, age, disability or ill health of victim, which increased the harm or threat
of harm caused by the criminal conduct.

(C) Threat of or actual violence
toward a witness or victim.

(D) Persistent involvement
in similar offenses or repetitive assaults. This factor may be cited when consecutive
sentences are imposed only if the persistent involvement in similar offenses or
repetitive assaults is unrelated to the current offense.

(E) Use of a weapon in the
commission of the offense.

(F) The offense involved
a violation of public trust or professional responsibility.

(G) The offense involved
multiple victims or incidents. This factor may not be cited when it is captured
in a consecutive sentence.

(H) The crime was part of
an organized criminal operation.

(I) The offense resulted
in a permanent injury to the victim.

(J) The degree of harm or
loss attributed to the current crime of conviction was significantly greater than
typical for such an offense.

(K) The offense was motivated
entirely or in part by the race, color, religion, ethnicity, national origin or
sexual orientation of the victim.

(L) Disproportionate impact
(for Theft I under ORS 164.055, and Aggravated Theft I under ORS 164.057).

(2) If a factual aspect of
a crime is a statutory element of the crime or is used to subclassify the crime
on the Crime Seriousness Scale, that aspect of the current crime of conviction may
be used as an aggravating or mitigating factor only if the criminal conduct constituting
that aspect of the current crime of conviction is significantly different from the
usual criminal conduct captured by the aspect of the crime.

(3) Any aspect of the current
crime of conviction which serves as a necessary element of a statutory mandatory
sentence may not be used as an aggravating factor if that aspect is also used to
impose the mandatory sentence.

(4) As used in this rule,
“disproportionate impact” means:

(a) The offender caused damage
to property during the commission of the theft and the cost to restore the damaged
property to the condition the property was in immediately before the theft is more
than three times the value of the property that was the subject of the theft; or

(b) The theft of the property
creates a hazard to public health or safety or the environment.

(1) When a sentencing
judge departs in setting the duration of a prison term, the judge shall consider
the purposes and principles of these guidelines as described in OAR 213-002-0001
to impose a sentence which is proportionate to the seriousness of the crime of conviction
and the offender's criminal history.

(2) A durational
departure from a presumptive prison term shall not total more than double the maximum
duration of the presumptive prison term. In no case may the sentence exceed the
statutory maximum indeterminate sentence described in ORS 161.605.

(3) The limit
on durational departures established by section (2) of this rule does not apply
to the indeterminate sentence imposed on a dangerous offender ORS 161.725 and 161.737.

(4) Durational
departure sentences of 12 months or less shall be served at the direction of the
supervisory authority. Durational departure sentences greater than 12 months shall
be served in the legal and physical custody of the Department.

(5) Notwithstanding
section (4) of this rule, terms of incarceration 12 months or less imposed pursuant
to ORS 166.070(2) shall be served in the legal and physical custody of the Department.

(1) When a sentencing
judge imposes a prison term as a dispositional departure, the term of incarceration
shall be:

(a) Up to
six months for offenses classified in Crime Categories 1 and 2, or grid blocks 3-G,
3-H and 3-I;

(b) Up to
twelve months for offenses classified in grid blocks 3-A through 3-F, 4-C through
4-I, and 5-G through 5-I; and

(c) Up to
eighteen months for offenses classified in grid blocks 5-F, 6-F through 6-I, and
7-F through 7-I.

(2) When
a sentencing judge imposes a prison term as a dispositional departure, the term
of post-prison supervision shall be determined by the crime seriousness category
of the most serious current crime of conviction as required by OAR 213-005-0002.

(3) Any sentence
inconsistent with the provisions of this rule shall constitute an additional departure
and shall require substantial and compelling reasons independent of the reasons
given for the dispositional departure. Such a sentence shall not exceed double the
maximum duration set forth in section (1) of this rule.

(4) Any sentence
imposed pursuant to this section that is 12 months or less shall be served at the
direction of the supervisory authority. Any sentence imposed pursuant to this section
that is greater than 12 months shall be served in the legal and physical custody
of the Department.

(5) Notwithstanding
section (4) of this rule, terms of incarceration 12 months or less imposed pursuant
to ORS 166.070(2) shall be served in the legal and physical custody of the Department.

(1) A departure on the number of sanction units imposed as part of a probationary sentence shall not total more than double the maximum number of sanction units permitted as part of the sentence as described in OAR 213-005-0011(2) and (3).

(2) Notwithstanding the provisions of section (1) of this rule, the maximum number of sanction units that may be used to impose a jail term as part of a probationary sentence shall be limited to the maximum number of sanction units included in the sentence as provided by OAR 213-005-0011(2) and (3).

(1) The court may depart from the limits established by OAR 213-012-0002 for consecutive sentences only if the judge finds substantial and compelling reasons to impose a departure sentence for any individual offense being sentenced consecutively.

(2) Except as provided by section (3) of this rule, the sentencing judge shall comply with the provisions of OAR 213-008-0001 to 213-008-0006 when a departure sentence is imposed for an offense sentenced consecutively.

(3) When a departure sentence is imposed for any individual offense sentenced consecutively, the incarceration term of that departure sentence shall not exceed twice the maximum incarceration term that may be imposed for that offense as provided in OAR 213-012-0020(2)(a). This limit on the duration of a departure sentence does not apply to any indeterminate sentence imposed on a dangerous offender under ORS 161.725 and 161.737 nor to consecutive sentences imposed for crimes that have different victims.

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contained in the Administrative Order filed at the Archives Division,
800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the
published version are satisfied in favor of the Administrative Order.
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